Opinion
No. 79-1967.
September 16, 1980. Rehearing Denied October 20, 1980.
Appeal from the Circuit Court, Dade County, William A. Herin, J.
Greenberg, Traurig, Hoffman, Lipoff, Quentel Wolff and David L. Ross and Sue M. Cobb, Miami, for appellant.
Sibley, Giblin, Levenson Glaser and Allen J. Smith, Miami, for appellee.
Before HUBBART, NESBITT and PEARSON, DANIEL, JJ.
The order under review which dismissed the instant foreclosure action without prejudice on an abatement theory is reversed and the cause is remanded to the trial court with directions to reinstate said action upon a holding that: (a) it is improper for a trial court to dismiss an action on an abatement theory as a dismissal of such an action [either with or without prejudice] does not constitute an abatement thereof, Birnholz v. Steisel, 338 So.2d 862 (Fla. 3d DCA 1976), (b) an abatement of the instant foreclosure action did not lie in this case, in any event, as the prior foreclosure action between the parties had been ordered dismissed upon appeal, Flagler Center Building Loan Corp. v. Chemical Realty Corp., 363 So.2d 344 (Fla. 3d DCA 1978), cert. den. 372 So.2d 467 (Fla. 1979), and the post-judgment issues remaining in said action in no way precluded the prosecution of the instant foreclosure action. Horter v. Commercial Bank Trust Co., 99 Fla. 678, 126 So. 909 (1930).
Reversed and remanded.